Judge blasts Hobet, DEP for selenium stonewalling

CHARLESTON, W.Va. -- A federal judge ruled Monday that Patriot Coal continues to violate water-quality limits on selenium, and scheduled a hearing for early August to consider steps to stop the company's delays in cleaning up the illegal pollution.

U.S. District Judge Robert C. Chambers criticized Patriot Coal's Hobet Mining subsidiary and the state Department of Environmental Protection for continuing to try to put off deadlines for complying with selenium limits at the company's sprawling Hobet 21 mountaintop-removal complex along the Boone-Lincoln county line.

"Hobet's track record of non-compliance and the WVDEP's history of acquiescing to deadline extensions and other modifications to ease permit requirements suggest compliance is not likely without intervention on the part of this court," Chambers wrote in a 55-page opinion.

Chambers did not immediately issue an injunction, instead scheduling a hearing for Aug. 9 to consider the scope of a court order. The judge had already set a hearing that same date to consider a request from environmental groups to hold another Patriot operation in contempt of court for continuing its selenium violations.

Chambers ruled on the latest in a number of legal actions brought by the Appalachian Center for the Economy and the Environment and the Sierra Club over violations by the coal industry of West Virginia's legal limits on selenium runoff from strip mines.

Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant needed in very small amounts for good health. In slightly larger amounts, though, selenium can be toxic. Very small amounts have been found to cause reproductive problems in aquatic life.

In 2003, a broad federal government study of mountaintop-removal mining found repeated violations of water-quality limits on selenium. Biologist A. Dennis Lemly, one of the nation's foremost experts on selenium, has said that pollution from the Hobet operation has left the Mud River ecosystem "on the brink of a major toxic event."

Coal lobbyists have been trying unsuccessfully to weaken the state's requirements, but have persuaded DEP and state lawmakers repeatedly to delay compliance deadlines. The Obama administration's U.S. Environmental Protection Agency is expected to announce a tougher selenium standard.

In the Hobet 21 situation, state regulators initially approved new permits for the operation two years ago without any selenium limits. After citizen groups rushed into court, the company and DEP agreed to add such limits.

But since that August 2008 deal, citizen groups say, Hobet has continued to violate its selenium limits. DEP officials and the company sought more time to comply by adding the permit at issue to a state court settlement that would have set a compliance deadline of July 1, 2012.

DEP was not a party to the lawsuit in federal court, and Hobet lawyers tried to use the company's deal with the state as a defense against the citizen lawsuit. But Chambers said there is "a realistic prospect of non-compliance" because "there is no indication that the WVDEP intends to required Hobet to comply" with the state court settlement agreement.

Patriot Coal officials did not immediately respond to a request for comment, and DEP officials had not yet seen the ruling late Monday afternoon.

Aaron Isherwood, staff attorney for the Sierra Club, said he group was "very pleased" with the judge's decision.

"It's high time that the coal industry cleaned up its act and stopped dumping dangerous levels of selenium into West Virginia waterways," Isherwood said. "Anyone who likes to fish should be very concerned about how the coal industry is polluting rivers with this toxic pollutant, as it is known to cause reproductive failures and deformities in fish and other aquatic species."